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Invest in Maldives

a guide for foreign investors

CTL Strategies recognised in 2021 Rankings of Chambers and Partners

CTL Strategies has been ranked in the Chambers Global Guide 2022, published by the Chambers and Partners. Chambers and Partners is an independent research firm that operates in 200 jurisdictions and is commonly referred to as the “gold standard” in the legal profession. Chambers deliver rankings and insight into the world’s leading lawyers and law firms.

The firm’s new ranking in Band 2 this year, marks a significant upgrade for the firm with the firm moving from Band 3 within just two years of its ranking. The Guide remarks that “the team understands the commercial reality of transactions and provides practical legal solutions”.

Recent Updates

Associations Act

The new Associations Act (the “Act”) (Act Number 3/2022) was ratified into law on 9 May 2022 introducing major developments to the associations regime of the Maldives, with elaborate provisions determining more precisely the types, functions, responsibilities and privileges of associations. The new Act upon becoming effective, will replace the Associations Act1 in effect since 22 May 2003 (the “Former Act”).

Categories of Associations

Under the Act, the following categories of associations can be formed in the Maldives:

  1. Clubs;
  2. Associations / Organisations / Societies;
  3. Private and Public Foundations;
  4. Federations / Alliances / Networks;
  5. Charities; and
  6. Professional Associations / Unions / Organisations / Societies.

Similarly to the Former Act, the new Act provides that associations formed under the Act would be legal entities formed separate from its members, whereby the members do not have any ownership rights of the assets of the Association.

The following categories do not fall into the new associations regime introduced by the Act and are thus, exempt from the Act:

  1. Associations formed and registered under an Act of Parliament.
  2. International Associations operated pursuant to agreements and/or conventions ratified by the government of the Maldives.
  3. Associations registered by students or teachers or guardians of educational institutions.
  4. Sports clubs registered under the Sports Act.2

Registration of Associations

  1. Under the Act, an association can be registered by two or more individuals as applicants maintaining the requirement from the Former Act. However, the new regime now allows both natural and legal persons to apply to register an association. Hence, two or more companies can now jointly register associations.
  2. The Registrar of Associations (the “Registrar”) is required to decide on the registration of an association within 30 days after the application documents are submitted.
  3. If the Registrar does not decide on an application of registration within the time stipulated in the Act, and if the registration documents are in compliance with the requirements stipulated in the Act, the association will be deemed to have been registered.
  4. Further, the new regime introduces a merger mechanism whereby two or more associations can merge to form a separate association. Upon merger, the members, assets and liabilities of the association will be transferred unto the new association. Mergers are, however, not applicable to charities.

Operation of Foreign Associations in Maldives

  1. The Act makes provisions for associations registered abroad to operate in Maldives pursuant to the registration of the association in Maldives. These requirements are not applicable to the following:
    • International foreign associations which the Maldives is a party to; or
    • Foreign associations being operated in the Maldives pursuant to bilateral agreements or treaties.
  2. The same registration procedures for local associations are applicable for foreign associations. However additional documents are required to be submitted by foreign associations. The new documents required under the Act include resolution of the members of the association to register the association in Maldives and copies of its constitutional documents.
  3. Foreign associations registered in the Maldives are required to follow all regulatory requirements stipulated under the Act. Hence, the requirement to appoint Maldivians for the top 2 Executive Committee positions and the financial head of the Association must be met by the foreign associations.

Constitutional Framework of Association

  1. The Act requires all associations to have a Memorandum of Association (MOA) stating the main policies of the association. The requisite details which must be included in the MOA has been provided in the Act.
  2. Additionally, each association must formulate its Articles of Association (AOA) to regulate the internal affairs of the Association.
  3. Associations are required to establish an Executive Committee in accordance with the respective AOA. The Executive Committee is empowered to undertake all functions to achieve the objectives of the association, except for powers specifically reserved for the general meeting of the members. As noted above, several positions of the Executive Committee are reserved exclusively for Maldivians.
  4. The new regime also requires general meetings to be held by all associations. The association will be required to pass its annual report and financial report of the association at the general meeting.
  5. Within 30 days of holding the general meeting, the association will be required to submit the reports to the Registrar of Associations.

Financial Assistance

Some of the major developments introduced by the Act pertains to the financial matters of associations. They include the auditing and disclosure requirements of associations, as well as requirements imposed on the state and state companies to provide financial assistance and tax relief to associations.

(a) Obtaining Financial Assistance

The Act allows for associations to obtain financial assistance from external sources. However, if any association receives an amount exceeding MVR 500,001 as financial assistance for any activity, the association will be required to disclose that information to the Registrar prior to the commencement of any such activity. The association is required to disclose the source, the amount obtained and the purpose for which the financial assistance is obtained. Further, the association is required to record such information in the annual report of the association.

(b) Auditing Requirements

If the total transactions of an association exceed MVR 500,001, the association is required to conduct an audit and submit the audit report along with the financial report of the association to the Registrar. Moreover, the Registrar has a discretion to notify the association to audit its records, if the financial report submitted by the association is incomplete, or if the association fails to submit its financial report within the prescribed time.

(c) State Assistance

The Act requires the government to provide financial assistance to associations annually. In this regard, the government is required to allocate 3% of the Ministry of Youth, Sports and Community Empowerment’s budget to provide free financial assistance to associations.

Further, state owned enterprises and state shareholding companies are now required to provide not less than 25% of its corporate social responsibility (CSR) budget annually as financial assistance to associations, in accordance with the policies formulated by the Ministry of Youth, Sports and Community Empowerment.

Liquidation of Associations

  1. The Act provides several mechanisms whereby an Association can be liquidated. The mechanisms can be summarised as follows:
    • Voluntary liquidation by the association;
    • Liquidation by the Registrar for any of the following reasons:
      1. Failure to submit documentation as required;
      2. Where the MOA and AOA of the association violates the laws of the Maldives;
      3. Failure by the association to commence activities within 1 year after registration;
      4. Failure to establish the Executive Committee within the prescribed period; and
      5. Failure to follow directions of the Registrar.
    • Liquidation pursuant to another act of parliament;
    • Liquidation pursuant to an order of court.
  2. Following the liquidation, assets remaining after settlement of the debts and obligations of the associations can be distributed as decided in the general meeting with the approval of the Registrar.

Application of the New Act to Existing Associations

Upon the Act becoming effective, all existing associations will be deemed to be registered under the new Act. The Registrar is required to formulate regulations to provide for the procedures and record details of the existing associations. Further, the Registrar is empowered to direct previously registered associations to fulfil certain regulatory requirements prescribed under the Act.

Effective Date

The Act will come into force on 9 November 2022, precisely 6 months from the date the Act was ratified into law.

References

1 Act Number 1/2003.
2 Act Number 20/2015.

Photo by Jaime Lopes on Unsplash

MIRA v Dhivehiraajjeyge Gulhun Plc [2022] SC 41

 
Summary

On 4 July 2022, the Supreme Court handed down judgment in an important case concerning the calculation of time limits for filing appeals of tax disputes.

The appeal forms part of the several pending appeals at the Supreme Court arising from the plethora of cases dismissed on procedural grounds by the High Court following its ruling in MIRA v Moosa Naseem1 (“Moosa Naseem case”) where the Court for the first time held that the time limit for filing appeals of tax disputes is to be calculated including public holidays and government holidays.

 
Background

  1. On 16 December 2020, the Act on Third Amendment to the Tax Administration Act2 came into effect.
  2. On 1 July 2021, the High Court dismissed the appeal submitted by MIRA in the Moosa Naseem case on procedural grounds, holding that the MIRA had filed the appeal at the High Court out of the time limit for filing appeals from TAT. The High Court arrived at this sudden and novel decision after having raised the procedural issue of appeal time limit sua sponte and then deciding that the correct law to apply when calculating time limits and periods provided in the Tax Administration Act3 (“TAA”) is Section 77(b) of the Tax Administration Regulation4 (“TAR”), which stipulates that all time limits and periods are to be calculated inclusive of public holidays and government holidays.
  3. During the hearing in which the High Court raised this issue, both Dhivehiraajjeyge Gulhun (“Dhiraagu”) and MIRA also argued that appeal to the High Court was within the appeal period, however, did not elaborately discuss arguments. Specifically, MIRA did not state under any rule, where MIRA should be afforded with an extended period to appeal.
  4. Applying that rule established in the Moosa Naseem case the High Court also dismissed the appeal filed by MIRA on procedural grounds stating that, same as in the Moosa Naseem case the appeal in the present case was filed after the expiration of the time limit for filing the appeal at the High Court.
  5. MIRA appealed the High Court’s procedural decision to the Supreme Court, essentially contending that in line with the rule laid down by the Supreme Court in State (Ministry of Transport and Civil Aviation) v Dheebaajaa Investment5 (Dheebaajaa case) the time limit for filing an appeal at the High Court only started to run from the date of issuance of the full case report of TAT. If successful, this would in effect result in the date on which MIRA filed the appeal in this case to fall within the time limit for filing the appeal.
  6. In response, lawyers of Dhiraagu noted that the High Court had erred in applying Section 77(b) of the TAR in arriving at the rule to include holidays when calculating appeal time limits. The contention was that applying TAR to calculate the appeal time limit is in effect taking the Regulation out of the scope of its enabling Act – the TAA. In support of this, it was further highlighted that regulating appeal time limits falls within the parameters of courts’ jurisdiction as stipulated under Article 156 of the Constitution.

 
Issue

The issue for Supreme Court’s consideration was whether the time limit for filing the appeal at the High Court in the present case commenced only when the TAT’s full case report was issued to MIRA.

 
Supreme Court’s Decision

  1. The Supreme Court unanimously dismissed MIRA’s appeal primarily on the basis that the rule in Dheebaajaa case cannot be applied to the present case since the facts surrounding the present case were distinguishable from that of the Dheebaajaa case.
  2. In this regard, the Court observed that MIRA failed to raise any concerns at the High Court regarding the delays in receiving the full case report from TAT, but conversely continued to maintain at the High Court the appeal was filed within the time limit. Further, the presiding justices unanimously rejected MIRA’s argument that, same as in Dheebaajaa case the appeal time limit in this case must be calculated from the date of receipt of the full case report from TAT as then only will MIRA be able to avail the full benefit of its constitutional right to appeal.
  3. Expanding further on the rule in the Dheebaajaa case, the authoring justice – Justice Mahaaz clarified that the rule in Dheebaajaa case must not be read as having changed the starting point of appeal time limits to the date of issuance of the full case report. In the view of Justice Mahaaz, the rule in the Dheebaajaa case only intended to give parties in similar circumstances as the appellants in the Dheebaaja case the benefit of not having received the full case report from a lower court as an event beyond the parties’ control which in turn may permit them to apply for an appeal out of the generally applicable time limit.
  4. The Supreme Court also considered the rule laid down in Kapoorulla Yoosuf v Maldives Customs Service6 (“Kapoorulla case”) and held that the rule in the Kapoorulla case is only an exception to the general rule on new grounds of appeal. Elaborating on the exception, Justice Mahaaz declared that in determining whether the Kapoorulla-exception is applicable, it must be considered whether a new factual point needs to be determined. On that basis, since MIRA maintained at the High Court that the appeal to High Court was filed within the time limit and also since MIRA failed to note at the High Court the delays in the issuance of the full case report, the Court ruled that the Kapoorulla-exception is not applicable to the present appeal.
  5. The Court also agreed with the contention of Dhiraagu that the provisions of the TAR cannot be applied to determine issues relating to appeal time limits. In the opinion of Justice Maahaaz, when construing delegated legislation it is necessary to consider the purposes and scope of the enabling Act. Since TAR is a delegated legislation formulated under the powers given to MIRA under the TAA, the Regulation cannot be taken out of the scope of TAA which governs the administrative matters of the Maldivian tax regime. Hence, unless expressly provided in the enabling Act, matters relating to appeal time limits may only be regulated by courts.

Commentary

This is the first time the Supreme Court addressed the issue of the correct law to apply when calculating the time limits and periods stipulated in the TAA. Following the procedural decision in the Moosa Naseem case, the High Court dismissed 18 cases appealed from TAT on procedural grounds holding that the appeals in each case were filed out of the relevant time limit for filing the appeal. The opinion of Justice Mahaaz on the issue has, however, made amply clear that the applying provisions of TAR to interpret matters such as calculation of appeal time limits which fall within the powers of the courts will be regarded as taking the Regulation out of the scope of its enabling Act. Accordingly, with the judgment of the Supreme Court in this case, the issue of the High Court applying TAR provisions and procedurally dismissing appeals is finally laid to rest.

The judgment also clarifies that a party cannot try and argue to apply the rule in the Dheebaajaa case belatedly at the Supreme Court without ever having raised at the High Court the issue of delays from the lower court or tribunal in the issuance of the full case report. As such, following the Supreme Court’s judgment, the best course for a party planning to appeal a lower court or tribunal’s judgment or decision, but is unable to do so due to the delays in the issuance of the full case report is to inform the relevant appellate court of such delays while also informing the lower court or tribunal of its appeal rights being hindered due to the delays in issuance of the full case report

Dhiraagu was represented by the lawyers of CTL Strategies LLP in these proceedings.

References

1 2021/HC-A/29.
2 Act Number 27/2020.
3 Act Number 3/2010.
4 Regulation Number 2013/R-45.
5 [2021] SC 42.
6 [2021] SC 75.

 

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